When interviewed for being recognized as a 2011 Mover & Shaker, Sue Polanka, Head of Reference/Instruction at Wright State University Libraries, was quoted in the LJ profile article: “As much as people call me an expert, I’m not,” Polanka says….
Posts Tagged ‘expert’
Is Legal Software Conduct? True or False?
09
Aug
On August 2, 2011, Federal District Judge Nanette K. Laughrey, for the Western District of Missouri, the Judge presiding over the class action case against LegalZoom for unauthorized practice of law, released an opinion denying, in part, Defendant’s Motion of Summary Judgment. The Court held that document preparation by non-lawyers, under Missouri Law, is conduct, and not entitled to First Amendment protection. ( See full opinion here ).
This is consistent with my own view, expressed in a previous post. (Is LegalZoom just a self help legal software company?).
The court’s opinion rejects the logic in an article authored by Professor Catherine J. Lanctot, titled, "Does LegalZoom Have First Amendment Rights: Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law." , which doesn’t surprise me, as it is hard to characterize LegalZoom’s activities as "speech", when they have 500 employees working on customer’s documents.
One paragraph in the Court’s opinion is troubling. On Page 21, the Opinion states as follows:
"Furthermore, LegalZoom’s branching computer program is created by a LegalZoom employee using Missouri law. It is that human input that creates the legal document. A computer sitting at a desk in California cannot prepare a legal document without a human programming it to fill in the document using legal principles derived from Missouri law that are selected for the customer based on the information provided by the customer. There is little or no difference between this and a lawyer in Missouri asking a client a series of questions and then preparing a legal document based on the answers provided and applicable Missouri law. That the Missouri lawyer may also give legal advice does not undermine the analogy because legal advice and document preparation are two different ways in which a person engages in the practice of law. "
…..
"The Missouri Supreme Court cases which specifically address the issue of document preparation, First Escrow, Mid-America and Eisel, make it clear that this is the unauthorized practice of law. The fact that the customer communicates via computer rather than face to face or that the document prepared using a computer program rather than a pen and paper does not change the essence of the transaction."
This Opinion could be interpreted to mean that all legal software programs are a form of conduct, and not entitled to First Amendment protection. I would argue that the Court comes to this conclusion because the legal software is used in the context of a document preparation service, and is not a stand alone program. As the Court further explains that:
As in Hulse, First Escrow, Mid-America, and Eisel, LegalZoom’s customers are rendered passive bystanders after providing the information necessary to complete the form. Yet LegalZoom charges a fee for its legal document preparation service. …..The customer merely provides information and "Legal takes over."
The facts of this case make a difference, I would argue, in understanding the scope of the Court’s Opinion.
If we define a legal software program as a "product", where there is no service element and no conduct whatever, then it is hard for me to believe that the Court intended to ban legal software programs from distribution directly to consumers, whether on-line or off-line.
If that was the Court’s intent, then companies like Nolo and Intuit, would have to pull their products off the shelves of Barnes & Noble and Staples and Amazon, programs like LawHelp Interactive, supported by the US Legal Services Corporation, would have to be terminated, and the many web sites that offer interactive forms, without any service component would have to be abandoned. Courts that are experimenting with distributing interactive forms from their web sites, would have to consider whether this activity is the "unauthorized practice of law", a strange result.
Law Schools like Chicago-Kent Law School that are experimenting with new legal software interfaces that connect citizens directly with legal help through software, might reconsider their efforts.
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The only way that such legal software could be used, would be by attorneys in the context of delivering of legal service through their law firms. I think this would be an unfortunate result.
Other possible negative consequences of such an interpretation would be:
- The legal profession would be further attacked for attempts to restrict commerce and maintain higher legal pricing by the consuming public causing further damage to the profession’s already declining reputation;
- Pro se litigants would not have access to tools that enable them to represent themselves, further restricting access to the legal system;
It would be helpful, if the Missouri District Court clarified its language on page 21 of the Court Order to distinguish between fact situations where interactive legal software is used as part of a document preparation service business and situations where the programs are distributed as stand alone programs — products– like a book or other publication. What do you think?
Watchdog on Wall Street Chris Markowski Weighs In on the Financial Crisis
18
Jun
"Watchdog on Wall Street" Chris Markowski's roles are reversed when Rich Bergeron interviews this popular talk show host about the distressed U.S. economy.
As part of Fight News Unlimited‘s plan to expand our coverage to cover fights of all kinds on all fronts, we spoke today with Chris Markowski, known as the Watchdog on Wall Street.
“Rabble Rousin'” Rich Bergeron interviewed Markowski earlier today to tackle the fight against government waste and corruption that is playing out in congressional debates and is a topic TV news pundits are constantly discussing these days. Markowski is a political and economic expert and nationally-syndicated radio talk show host. Chris talks about a variety of different topics surrounding our volatile United States economy in our podcast below.
USA Today reported recently that the US Government will be on the hook for 61.6 trillion dollars in unpaid financial promises thanks in part to Social Security and Medicare. The Watchdog on Wall Street says if you add the financial bailouts and other government payouts for social programs we could see this number hit 100 trillion dollars. Chris Markowski predicted this would happen 5 years ago, and has been warning Americans for over 10 years.
That debt makes each US household responsible to pay $527,000.00 to fund these promises. That responsibility is 5 times the amount an average US home borrows for a house, car and other debt.
Chris Markowski’s Background:
* Hosts a syndicated radio show which is heard in over 100 markets
* Regularly featured expert on CW network’s “Daily Buzz”
* Frequent Contributor to FOX News and CNN
* President of Markowski Investments
* Appeared on “Inside Edition”
* Political and Financial Expert
Find out more about Chris at his Web-site:
http://watchdogonwallstreet.com/index.html
LISTEN TO THE PODCAST:
Investigator and Author Robert Mazur: Exclusive Audio Interview
11
Jun
Robert Mazur joins Host Rich Bergeron for this episode. Mazur is a former Undercover Federal Agent and Author of “The Infiltrator: My Secret Life Inside the Dirty Banks Behind Pablo Escobar’s Medellin Cartel.” Mazur is a veteran undercover investigator, forensic nvestigator and acclaimed author. He is additionally a court certified expert in money laundering.
This is an edited portion of the entire interview. For more on Robert check out http://www.the-infiltrator.com/and search for the articles he mentions at the end of our conversation. For the full first portion of the interview Click The Following Link: Robert Mazur Interview
LegalZoom is Considering an IPO
22
Mar
Apparently LegalZoom is in the early stages of planning an IPO, (going public), according to an unnamed source at VentureBeat. Employing more that 500 employees, and having raised over $45 million in venture capital over the last few years, LegalZoom is clearly the leading non-lawyer legal document preparation web site. This is a good example of a disruptive innovation in the delivery of legal solutions by a non-lawyer provider that continues to eat away at the market share of solo practitioners and small law firms.
Focusing on a market that is not served well by the legal profession, in the same way that Southwest Airlines first targeted people who traveled by bus, rather than by air because air travel was too expensive, LegalZoom is will undoubtedly figure out a way to move up the value chain, capturing even more complex business from law firms, without actually giving legal advice.
In the United States, because the definition of what constitutes the "unauthorized practice of law" is so vague. (perhaps unconstitutionally vague), it would seem that even though LegalZoom does not actually provide legal advice, it would be prohibited from assembling legal documents, even when the document assembly is purely software-driven.
The reality is that bar associations have a tough case to make against a non-lawyer provider when no actual legal advice is given. UPL statutes haven’t been truly tested on the issue of whether a non-lawyer can assemble legal documents without actually giving legal advice. In Florida, when the issue came up, there was a compromise between the bar and non-lawyer providers and non-lawyers can help a consumer complete court forms as long as no legal advice is provided. It gets murky when you move beyond courts forms, to more complex transactional documents such as a will, a living trust, or a marital separation agreement, even if the user is making the selection through a software driven questionnaire. Some UPL advocates, have argued that the selection of alternative clauses is still UPL, because a person had to "program" the clauses. There is some precedent for this position, but the State of Texas on the other hand, specifically excludes software driven document assembly from the "unauthorized practice of law., provided there there are disclaimers which state "clearly and conspicuously that the products are not the substitute for the advice of an attorney."
I think the risk portion of the prospectus will make for fascinating reading, particularly since in many states UPL is a felony. I can just visualize this language: "Investors should be aware that the company may be violating unauthorized practice of law statutes in many states, and as a result, if convicted, one or more executive officers may be required to serve time in the pokey."
In the interest of full disclosure, Epoq US, of which I am President, and which is the parent company of DirectLaw, also provides legal document preparation services over the web directly to consumers through a network of legal web sites So perhaps I should be worried as well.
The Law Wizard – from Great Britain
03
Feb
I discovered an interesting web site called The Law Wizard, still in beta, for pro se parties doing their own probate, in the United Kingdom. The site promises to offer a unique package of online interactive tools, guides and videos. The Probate Wizard is initially designed for individuals who want to probate their own estates, but the site states that the tools will be made available for law firms as well.
The site is scheduled for launch later n 2011. The site looks interesting because it combines a web-enabled document automation system with extensive video and other information guides that takes the user through a complicated process step by step. We will see more web sites like this, both in the legal form market space and the virtual law firm space.
What if my former spouse and I cannot decide on a parenting plan?
03
Feb
An important step in the divorce process is agreeing what to do with your children. This includes decisions about child custody, parenting time, child support, and who holds what responsibilities over the child or children in your life. In the past, there was one custodial parent and the other parent would receive visitation rights only. This is no longer the only option. Nowadays, one parent’s home may be where the children spend most of their time, but there is a clear trend toward more equal-time arrangements. Also, it is very common for parents to have equal decision-making authority regarding such matters as education, non-emergency health care, and religious training.
When the decisions about the parenting plan are complicated or when both parties are unable to reach a resolution, the court may intervene and require a parenting plan evaluation.
In a parenting plan evaluation, a specially-trained and licensed expert evaluates each parent and child to assist the court to make a decision. These experts often have advanced degrees and training regarding child development. The evaluator is an impartial party who is focused on one thing, and that is “the best interests of the children” involved.
What is the goal of a parenting evaluation?
It is key that the expert performing the evaluation be trained in how to remain impartial and keep the well being of the child a priority. Luckily, in Western Washington there is a special certificate program that trains health and law professionals in these skills. It is called the Parenting Evaluation Training Program (PETP) at the University of Washington. Graduates of this program have been specially trained to work effectively as evaluators and treatment personnel to protect the interests of children and help resolve high-conflict family law litigation.
A PETP graduate also may offer “Co-Parent Psychotherapy,” which is a form of counseling with the following goals:
- Reduce parental conflict and enhance cooperation
- Quickly resolve disputes between parents about the children
- Assist child’s (children’s) coping with their parents’ conflict
- Reduce post-divorce litigation
- Enhance parenting skills
At its core, the parenting evaluation and co-parent psychotherapy can help you learn how to parent your child together with your former spouse and lead a more peaceful life after divorce. It is not a single-parent parenting class, but an opportunity for both parents to learn how to focus on the well being of their child.
You can find details on what to expect during the University of Washington Co-Parent Psychotherapy process here.
Where can I find a qualified parenting evaluation professional to help me with this issue?
If you need a parenting evaluation or want to start Co-Parenting Psychotherapy, the list of PETP Graduates is a great resource.
If you have any questions about how a parenting evaluation can help move your family law issue forward, we can help. You can sign up for a free 30-minute Attorney Appointment on the web. We schedule these appointments on one Tuesday each month. You can also contact our office and speak to Xenia at 877-776-7310 to schedule a free consultation.
We look forward to working with you.
Source: Guidelines for Child Custody Evaluations in Family Law Proceedings (http://www.apa.org/practice/guidelines/child-custody.pdf ) by American Psychological Association
Related: Co-Parent Psychotherapy (http://depts.washington.edu/petp/coparent.html )
Applications for the James Keane Award for Excellence in eLawyering Are Still Open.
20
Jan
The eLawyering Task Force of the Law Practice Management Section of the ABA is seeking recommendations and applications for the James Keane Award for Excellence in eLawyering which is awarded annually at ABA Tech Show in Chicago ( April 11-13, 2011). This will be the fourth year that the Award has been made. Previous award winners include Stephanie Kimbro for her work in creating the virtual law firm of KimbroLaw and Lee Rosen of the The Rosen Law Firm (both coincidentally located in North Carolina).
The purpose of this Award is to give recognition to law offices that have developed legal service innovations that are delivered over the Internet. The focus of the Award is on the innovative delivery of personal legal services, with special attention given to firms and entities that serve both moderate income individuals and the broad middle class.
The Award is technology-focused, in the sense that the Award Committee is seeking innovations that demonstrate the concept of eLawyering – which can be further defined as the delivery of online legal services. Examples of elawyering include the development of online web advisors, expert systems, innovative uses of web-enabled document automation, on-line client collaboration systems, and on-line dispute settlement systems, to name a few examples.
Nominees may be any individual lawyer, law firm or other deliverer of legal services to individuals within the United States.
The nominee can be a large or small law firm, public or private, or a legal services agency. More than one entry may be submitted, and the Task Force encourages self-nomination. The Application deadline has been extended to March 15, 2011.
For further information and an application form see: http://tinyurl.com/48xvcfq
Online Legal Services-A Revolution that Failed?"
06
Dec
Chrissy Burns, an Australian lawyer produced a PHD thesis in 2007, entitled ‘Online Legal Services-A Revolution that Failed?’, where she argued that Clayton Christensen’s theory of disruptive innovation does not apply to online legal knowledge products and that a "latent market" for legal services really doesn’t exist. Ms Burns is presently Director of IT and Knowledge Management at Blake Dawson so she brings first hand knowledge to her thesis based on her work with large law firms. In a recent review of her workby Darryl Mountain, an attorney with expertise in document automation, makes the counter-argument that Ms Burns focus is purely on large law firms and the corporate legal market and overlooks the documented unmet legal needs of the broad middle class and the disruptive response of non-lawyer providers such as LegalZoom which has served generated over a 1,000,000 wills for consumers during the past five years. Mountain cites other evidence that there is a wide and growing latent market for legal services, that Burns has overlooked. Mountain concludes that, " The legal marketplace has continued to evolve since Burns finished writing in 2007. On the retail side of law practice, the revolution is very much alive and people are beginning to resolve legal problems solely through the use of online legal knowledge products."
Mountain also argues that Burns has defined "online legal services" too narrowly because her definition is limited to knowledge products that solve legal problems without lawyer assistance or involvement. Such products are stand alone applications, such as "expert systems."
Mountain argues that the better model for thinking about disruptive change is to consider how Internet-based legal technology can work together with legal professionals to increase law firm productivity, maintain profit margins, or result in lower fees. Instead off stand-alone, legal knowledge products, Mountain argues that technology-assisted legal service is likely to become the more pervasive model in the future. Mountain writes:
"The best solutions are often those that combine people and software, whether the people are lawyers, paralegals, or outsourced personnel. "
His review and Burns’ thesis are both worth reading for those who follow developments in the delivering of legal services online.
